Re-empower SADC Tribunal
Editorial:
28 JUN 2013 07:56 EDITORIAL
SA’s highest court, without staking out any position on Zimbabwe’s land
process, has shown the SADC a most unflattering image in the mirror.
A fortnight ago, the Constitutional Court reinstated Mpondombini Justice
Sigcau as Mpondo king. Sadly he did not live to hear the decision. This
week, the court issued a ringing affirmation of the South African
Development Community (SADC) Tribunal as an instrument for the protection of
human rights almost a year after it was stripped of any power to fulfil that
role. Justice can come wrapped in cruel irony.
Zimbabwean farmers, stripped of their land and denied both compensation and
access to courts, had approached the tribunal for redress. It ruled in their
favour, referring the case to the SADC summit for an appropriate remedy, and
awarding costs against the Zimbabwean government. When the government
refused to comply, some of its property in South Africa was attached in
execution of the debt. The question before the court was whether the
decisions of the tribunal were binding in South Africa.
The answer was a resounding yes. More than that, it was a statement of the
larger significance of the tribunal that stands as a rebuke to the decision
by regional leaders to drastically limit its powers.
Writing with the support of eight of his colleagues, Chief Justice Mogoeng
Mogoeng frames the decision of the court in terms that stress the centrality
of SADC to a broader project of African renewal.
He says: “For the right or wrong reasons, Africa has come to be known … as
the dark continent, a continent which has little regard for human rights.
Apparently driven by a strong desire to contribute positively to the
renaissance of Africa, shed its southern region of this
development-inhibiting negative image, co-ordinate and give impetus to
regional development, Southern African states established the SADC with
special emphasis on the need to respect, protect and promote human rights,
democracy and the rule of law.”
Mogoeng goes on to situate the tribunal as the keystone of justiciability
for that project, saying it was set up to “ensure that no SADC member state
is able to undermine the regional development agenda by betraying these
noble objectives with impunity”. Critically, “it was created to entertain
human rights related complaints particularly by citizens against their
states”.
Zimbabwe not only ignored the ruling, it also sought, and won, the effective
neutralisation of the tribunal in precisely those cases between citizens and
their states that Mogoeng identifies as central to its mission.
In 2010, SADC agreed, at Zimbabwe’s behest, to suspend the work of the
tribunal, and in August 2012 gutted it as a human rights instrument,
limiting it to a vehicle for dealing with disputes between members states
around the interpretation of the SADC protocol. It was a disgraceful
capitulation.
Now South Africa’s highest court, without staking out any position on
Zimbabwe’s land process, has shown them a most unflattering image in the
mirror. The judgment should be a spur by South Africa’s authorities, and for
those of our neighbours, to return this crucial institution to its proper
role.